Thursday, June 25, 2009

New York State Requires Franchisors to Report Franchisees’ Sales

This posting was written by Pete Reap, Editor of CCH Business Franchise Guide, and John W. Arden.

New York State has enacted legislation requiring all franchisors having franchisees within the state to file annual information returns with the State Department of Taxation and Finance, reporting the gross sales of each franchisee within the state, as well as the sales by the franchisor to the franchisee and any franchisee income reported to the franchisor. The franchisor must also report such information to the relevant New York franchisees.

The new requirements were contained in amendments to Section 1136 of the New York Tax Law. The legislation, one of the state’s voluminous budget bills (A. 157, Chapter No. 57), became effective on April 7, 2009.

Filing Requirement

The returns must be filed annually on or before March 20 and must cover the four sales tax quarterly periods immediately preceding that date. The returns must be filed electronically, in a manner prescribed by the Commissioner of the Department of Taxation and Finance.

However, the law provides that the first returns must be filed on or before September 20, 2009 and cover the period of March 1, 2009 through August 1, 2009. The returns filed on or before March 20, 2010 shall cover the period from September 1, 2009 to February 28, 2010.

A further amendment—Section 1145(i)—sets out penalties for failure to provide the required information.

In a May 27, 2009 letter to franchisors, the New York State Department of Taxation and Finance said that it was contacting franchisors to make them aware of the new requirement. The department stated that directions for filing the returns are being written and asked franchisors to provide lists of New York-based franchisees.

New York is the first jurisdiction to require such reporting by franchisors. Text of the provisions—New York Tax Law, Article 28, Sections 1136(i) and 1145(i)—appear at CCH Business Franchise Guide ¶4321.

Reaction of Franchise Bar

The enactment of these new requirements “is unprecedented, aberrant, anomalous and could prove deeply threatening to franchisees and franchising,” wrote New York franchise lawyer David J. Kaufmann in a column (“Many Unhappy Returns”) to be published in the New York Law Journal.

The new reporting requirement will allow the New York State Department of Taxation and Finance to compare the revenue figures from the franchisor with that reported by franchisees on their New York tax returns. If the franchisees are found to underreport revenues, the state will pursue them “through audits and resulting civil—or even criminal—actions."

Although New York is the first jurisdiction to impose such a reporting requirement, “we imagine many other states, and perhaps even the Internal Revenue Service, will follow New York’s lead by enacting similar franchisor reporting requirements,” wrote Kaufmann.

He further warned that franchisees may perceive franchisor reporting as interference in their businesses and that the reporting requirement may establish a new type of “tax nexus” between out-of-state franchisors and New York State.

In a June 9 Franchise & Distribution Bulletin, the law firm of Sonnenschein Nath & Rosenthal noted that reporting requirements “are similarly being considered in other states and are consistent with recent trends showing that states have been very aggressively pursuing all opportunities for additional tax revenue in order to relieve huge budget deficits.”

Your franchisor would not have filed a return yet, since the law requires the first filing to cover the period of March 1, 2009 through August 1, 2009. For information on the franchisor's filings, I suggest contacting the New York Department of Taxation and Finance after the September 20, 2009 deadline for the first filing.